Paul MacKlin on Social Condition

Paul MacKlinLiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Madam Speaker, I want to thank the hon. member for Sherbrooke for sharing with the House his thinking behind the motion he has brought before us.

I wish to share with the House some of our own thoughts on all the subsidiary issues that underlie the broad question of including social condition as a prohibited ground of discrimination. I am able to do so at this time because the Department of Justice is already in the process of comprehensively reviewing this matter to ensure a responsible and considered response can be made.

The importance of ensuring that Canada continues to have an effective and responsive human rights system cannot be overstated. The government's commitment to this goal will not be undermined by hasty or shortsighted amendments, the effect of which could be to overburden the commission or to run counter to the human rights progress we have worked so hard to achieve.

Social condition without the proper constraints or study could have that effect on our human rights scheme. One thing the hon. member has intimated is that the purpose of the motion before the House is related to protecting from discrimination only those individuals of a lower or disadvantaged socio-economic status. Yet, the meaning of the term “social condition” is by no means that apparent. It implies no obvious limitations or constraints. Its definition is completely open to a variety of wide-ranging and potentially problematic interpretations.

If social condition is added in this ad hoc way, as is being suggested in the motion, a number of unintended and unforeseen consequences could ensue. I have identified three specific potential drawbacks of including social condition in this way and I would like to share them with the House.

These would be first, to possibly result in a counterproductive application of the Canadian Human Rights Act to benefit already advantaged groups that do not require our protection; second, to perhaps be so broad and malleable as to overwhelm the system; and third, to potentially be so over-restrictive as to preclude protection for the very people it was meant to protect.

Turning to the first potential situation that social condition protection could be misused or abused by already advantaged groups, the experience of Quebec is most enlightening. As the hon. member would know the Quebec charter has, since its inception in 1975, included condition sociale as a prohibited ground of discrimination. However the item was never debated or questioned on the merits at the time of its adoption.

Thus, it was left to the courts to interpret social condition. This resulted in some surprising outcomes for individuals bringing their complaints of discrimination on the ground of social condition until the Quebec Human Rights Commission intervened with guidelines in 1994.

Prior to the guidelines, social condition was interpreted by the judges to include, among other things, being a judge. A doctor's level of income and a for profit hospital were even found to come under the umbrella of social condition. In contrast, characteristics such as being in receipt of social assistance, being a full time student, being pregnant, having a psychiatric record and a history of alcoholism and unemployment due to a strike were not found to be social conditions.

Is this the result the House wishes to support in the motion? I would think not. Yet if the Canadian Human Rights Act is amended in the ill-defined and unconstrained way proposed by the motion, similarly counterproductive interpretations of the Canadian Human Rights Act could result.

For example, the addition of social condition without appropriate limits on its interpretation and application could conceivably be used to challenge our progressive tax system because there exists a higher marginal tax rate for high income earners. Our system of taxation is designed to recognize that lower income earners cannot and should not bear the same burdens on the means of their survival as those with a much larger income.

Should the addition of social condition in the name of human rights and equality reverse this? Should social condition mean that everyone receives social assistance as an income supplement whether it is needed or not?

The Canadian Human Rights Act and the Canadian commitment to combating discrimination seek to protect vulnerable and disadvantaged groups from discrimination, not to reward or profit individuals because they belong to already advantaged groups.

The second potential consequence of including social condition without definition or appropriate constraints is that social condition could be interpreted so broadly as to overwhelm the human rights system and leave open to possible challenge a host of valued social programs meant to assist the very lower status socio-economic groups for whom the protection is surely intended.

Considered broadly, what is a social condition? Could not the status of being discriminated against be a social condition itself? Why then would we need grounds such as family status, marital status, disability, sex, race or any other in the act? It could also conceivably cover any other social status, including being a prisoner, having a criminal record, being unemployed. The list is almost endless.

It may be that we as the people of Canada decide that we wish to broaden the scope of the Canadian Human Rights Act or to explore other approaches to discrimination protection. In any event, decisions as important as these must always be made in a considered and informed manner, which is clearly not envisioned in this motion.

The Canadian human rights system does not possess unlimited resources and the potential increase in cases that could be brought with the addition of social condition, left undefined in this manner, could have a serious impact on the administration and enforcement of our Human Rights Act as a whole.

Interpreted broadly enough, challenges could be brought against any of our social programs that make income distinctions, even if these distinctions are made for the benefit rather than the detriment of lower income individuals. Social legislation by its very nature often makes distinctions on the basis of income and employment.

The complete loss of government control over choosing where public resources should be allocated in the public interest is an unacceptable result for a democratic society.

The third possible consequence of adding social condition in an undefined fashion is at the other end of the scale: an interpretation that could be so narrow that the potential benefit of its inclusion would be lost.

Consistently, social condition is often raised in the context of poverty and a ground through which poor people can be protected from stereotypes and discrimination. However is this, or should this be, the only factor in considering an individual's social condition? If so, why not simply include a ground of discrimination such as being in receipt of social assistance or source of income? A number of the provinces have done so, but is this sufficient in the federal sector?

Does this mean we want to exclude protection for the working poor who do not receive public assistance, or for the unemployed? Should not then employment status or nature of one's employment also be a factor? And what about part time, seasonal, temporary, contract and other non-standard workers who might well face barriers those who are employed full time do not?

These examples all raise the question of whether the source or level of income is enough or whether a broader notion of social condition may be necessary.

The Department of Justice has already begun a concerted study on the issue of social condition as part of its larger review of the Canadian Human Rights Act as a whole. As members can see, our thinking is already quite advanced in this area.

It is clear that choices need to be made as to the scope, operation and definition of a ground such as social condition. However, these choices must always keep in mind the overarching objective of the act as a refuge of the disadvantaged and disenfranchised, one that is accessible, responsive and efficient. Only clear directions in the law can satisfy this objective.

As a House, we should not support the motion as it stands. To do so in this case would be to abdicate our responsibilities as law makers at the expense of the very people the hon. member surely seeks to protect.